Warren v. Kansas, State of

Filing 3

MEMORANDUM AND ORDER ENTERED: This matter is dismissed. Pursuant to Rule 11(a) of the Rules Governing Section 2254 cases in the United States District Courts, the court declines to issue a certificate of appealability in this matter. Signed by Senior District Judge Sam A. Crow on 4/17/2013. (Mailed to pro se party Waddell Warren by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WADDELL WARREN,
Petitioner,
v.

CASE NO. 13-3031-SAC

STATE OF KANSAS,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2254. Petitioner proceeds pro se.
The court has examined the petition and the supplement, titled
as an addendum to request authorization, and construes this matter
as a successive application for habeas corpus relief challenging
petitioner’s 1991 conviction of conspiracy to commit robbery and
aiding and abetting aggravated robbery. State v. Warren, 843 P.2d 224
(Kan. 1992).
Petitioner previously sought habeas corpus review of these
convictions. Warren v. Bruce, 119 Fed. Appx. 204 (10th Cir. 2004), cert.
denied, 545 U.S. 1131 (2005).
Because this is a successive application for habeas corpus,
petitioner must seek authorization from the United States Court of
Appeals for the Tenth Circuit to proceed in this matter. 28 U.S.C.
§

2244(b)(3)(a).

Absent

that

authorization,

this

court

lacks

jurisdiction to consider the petitioner’s claims.
In order to obtain authorization, the petitioner must establish
that his claims are based upon “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that

was previously unavailable,” 28 U.S.C. § 2244(b)(2)(A), or that “the
factual predicate for the claim could not have been discovered
previously through the exercise of due diligence” and that “the facts
underlying the claim, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.”
§2244(b)(2)(B).
Because petitioner does not show that he has obtained the
necessary authorization, this court either must dismiss the petition,
or, if it concludes it is in the interest of justice, transfer this
matter to the appellate court pursuant to 28 U.S.C. § 1631. In re Cline,
531 F.3d 1249, 1252 (10th Cir. 2008). The court has considered the
record and finds no reason to transfer this matter. The previous
petition

was

dismissed

as

time-barred

several

years

ago,

and

petitioner has made no showing that justifies allowing the present
application to proceed.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed.
IT IS FURTHER ORDERED that, pursuant to Rule 11(a) of the Rules
Governing Section 2254 Cases in the United States District Courts,
the court declines to issue a Certificate of Appealability in this
matter.
A copy of this order shall be transmitted to the petitioner.
IT IS SO ORDERED.
DATED:

This 17th day of April, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge